Practice and Procedure


PUBLISHED January 22, 2003

Where a complex, high value, clinical negligence claim had involved an unusually intensive level of input from solicitors and counsel, the costs judge's decision to award an hourly rate of: (i) ?300 to the respondent's solicitor; (ii) £350 to the respondent's counsel; and (iii) to allow the partner in the firm to charge much of the work done at a higher fee than an assistant was justified.Appeal from decisions made by Costs Judge Roger on 24 April 2002. The respondent's ('H') clinical negligence claim had been based on the proposition that the appellant had failed to care for him adequately during the first 35 minutes of his life with tragic consequences. The outcome had been that damages of £3.5 million plus educational costs indemnity capped at £300,000, were to be recovered. Costs went to detailed assessment and it was held that: (i) the hourly rate for H's solicitor was £300; (ii) there had been properly supervised delegation from the senior partner to the assistant solicitor and as such, it had been perfectly reasonable for the partner in charge of the case to have done the majority of the work; and (iii) counsel's hourly rate was £350. The appellant appealed submitting that: (a) an hourly rate of £300 for the solicitor was excessive. He relied on the Summary Assessment of Costs Guide ('the SCCO Guide ') which stated that the court ought not to endorse disproportionate and unreasonable costs; (b) the rate was out of line with comparable cases; (c) the hourly rate awarded to the head solicitor ought to have been principally supervisory; and (d) the hourly rate of £350 for counsel was excessive.HELD: (1) The proper approach to appeal from a costs judge's decision was stipulated in the Civil Procedure Rules 1998 SI 1998/3132. H had suffered severe acquired, hypoxic brain injury:dyskinetic quadriplegic cerebral palsy causing major and permanent motor disabilities. He had no independent mobility, virtually no useful arm or hand function, dysarthric speech and full insight into the nature and extent of his disabilities. He was totally dependent on others for his daily activities. In these circumstances, the demands placed on a solicitor managing the case would vary greatly making the SCCO Guide of limited assistance. The judge had based his calculations on the submissions made to him, his very full understanding of the case and his extensive relevant personal knowledge. It was having considered the case in the round that he had come to his conclusion. Although the judge had referred to the A plus B calculation (which was discouraged by the Civil Procedure Rules 1998 and The Costs Practice Direction) he referred to it merely as a guide and did not rely on it. (2) The claim had been pitched at £6.1 million and settled for £3.5 million. Consequently, it was reasonable for the senior partner to have done most of the work and the client was entitled to expect no less. Where the senior partner had done the work, it would have been done more effectively and quickly than if it had been delegated. (3) H had not acted unreasonably in engaging the services of the particular silk who had been briefed. Although the award was very high, the judge had a wide discretion which could only be interfered with if it had been wrongly exercised. This award was within his discretion. The instant case was a complex, very high value clinical negligence claim, involving unusually intensive level of input from solicitors and counsel, even for this category of injury (Simpson Motor Sales (London) Ltd v Hendon Borough Council (1965) 1 WLR 112, considered). It should not be read as indication that an hourly rate of £300 for partners or £350 for leading counsel was in any sense the "norm".Appeal dismissed.For the Quantum Report in this matter, see Leo Higgs (By his Mother & Litigation Friend Marcia Higgs) v Camden & Islington Health Authority (2001) LTLPI 2/5/2001

[2003] EWHC 15 (QB)